THIS TRIAL CHAMBER of the International
Tribunal for the Prosecution of Persons Responsible
for Serious Violations of International Humanitarian
Law Committed in the Territory of the former Yugoslavia
since 1991 (“Tribunal”);

BEING SEIZED, pursuant to Rule 75(G)(i)
of the Rules of Procedure and Evidence of the International
Tribunal (“Rules”), of an “Applicant’s Motion Seeking
Access to Confidential Material in the Milosevic Case”,
filed on 24 January 2006 (“Motion”), in which
the Defence of Momcilo Perisic (“Applicant”) argues
that the requirements for access to confidential
material from other proceedings have been met,
and requests access to confidential material in
the Milosevic Case;

NOTING that the precise scope of the request
is unclear, because the Motion first requests
access to “all confidential materials and materials
that were tendered for admission but never were
offered for admission in the Milosevic case”,1 and finally asks for “all
confidential material in both trial and appellate
proceedings (including exhibits and transcripts
of closed sessions and the filings) in the
Milosevic case except with respect to materials
that relate to the original Kosovo indictment
and which do not relate to the Appellant”;2

NOTING that the question of the admission
status of materials arises if the materials in
question are susceptible of being exhibits in a
case, not if the materials in question are transcripts
or the submissions of the parties;

CONSIDERING that, even if there is a difference
between materials tendered for admission and materials
offered for admission, any material so tendered
or offered that is not actually admitted has no
official status in the proceedings, and therefore
does not form part of the corpus of materials to
which an applicant from other proceedings may be
granted access;

NOTING that, despite the extensive scope
of the Applicant’s request, the
Motion concedes that “the Amended Indictment against
the Applicant charges him in part with command
responsibility for the criminal acts alleged to
have been committed in Sarajevo, Zagreb and Srebrenica by
individuals who have been named as subordinates”,3 allegations
similar to those against accused Milosevic;

NOTING that the Motion also asserts an overlap
between the cases against the Applicant and accused
Milosevic with regard to Kosovo, by requesting “disclosure
of any materials that relate to the Applicant’s
resistance to the use of the VJ in Kosovo and
his subsequent termination as Chief of Staff due
to this resistance ”4 (“requested
Kosovo material”);

NOTING that neither the Prosecution nor
the Defence filed a response to the Motion;

NOTING that the current indictment against
the Applicant (“Current Perisic
Indictment”)5 charges him with
the following crimes for his acts and omissions
in relation to events in Sarajevo, Zagreb, and
Srebrenica: murder, extermination, and inhumane
acts as crimes against humanity; murder and attacks
on civilians as violations of the laws or customs
of war; and murder, cruel and inhumane treatment,
and forcible transfer as forms of persecution as
a crime against humanity;6

NOTING that the amended Bosnia indictment
against Accused Milosevic (“Milosevic Bosnia
Indictment”) charges him with
the following statutory crimes arising from, inter
alia, the persecution, extermination, murder,
wilful killing, and forcible transfer or deportation
of civilians in, around, and from Srebrenica and
Sarajevo; and the wanton destruction or plunder
of property, wilfully causing great suffering,
cruel treatment, and attacks on civilians in Sarajevo:
genocide or complicity in genocide, grave breaches
of the Geneva Conventions, violations of the laws
or customs of war, and crimes against humanity;7

NOTING that the second amended Croatia indictment
against Accused Milosevic (“Milosevic Croatia
Indictment”) does not charge him with any crime
arising from any event in Zagreb,8 and that
there is no temporal overlap between the charges
against the Applicant and those against Accused
Milosevic with regard to events in Croatia;9

CONSIDERING that a party is always entitled
to seek material from any source to assist in
the preparation of its case if the document sought
has been identified or described by its general
nature, and if a legitimate forensic purpose for
such access has been shown; and that access to
confidential material from another case is granted
if the party seeking it can establish that it may
be of material assistance to its case;10

CONSIDERING that the relevance of the material
sought by a party may be determined by showing
the existence of a nexus between the applicant’s
case and the case from which such material is sought,11 and
therefore that access to material may be granted
if the party seeking it demonstrates a “geographical,
temporal or otherwise material overlap” between
the two proceedings ;12

CONSIDERING that the significant similarities
in the facts giving rise to the charges against
the Applicant and the Accused Slobodan Milosevic,
with regard to events in and around Srebrenica
and Sarajevo during the periods concerned in the
respective indictments, constitute a clear material
overlap between the two proceedings;

CONSIDERING that the Motion has also demonstrated
a legitimate forensic purpose for access to the
requested Kosovo material;

CONSIDERING, however, that no legitimate
forensic purpose has been shown for access to any
confidential material relevant to the Croatia charges
in this case, or to all confidential material relevant
to the Bosnia charges in this case without geographic
limitation;

CONSIDERING that the Simic Appeals
Chamber ruled that “ex parte
material, being of a higher degree of confidentiality,
by nature contains information which has not been
disclosed inter partes solely because of
security interests of a State, other public interests,
or privacy interests of a person or institution ”,
and that, like the applicant in Simic, the
Applicant in this matter “cannot
demonstrate a legitimate forensic purpose in relation
to such ex parte material ”,13 even
if his request could be interpreted to include
such material;

CONSIDERING that some of the material to
which access is sought contains information that
may identify protected witnesses, and that the
Applicant has undertaken “to
comply with all the measures of protection ordered
in the Milosevic Case ”,14 as
well as “any additional protective
measures the STrialC Chamber may deem necessary
to impose for the protection of witnesses in the Milosevic Case”;15

CONSIDERING that, pursuant to Rule 75(F)(i)
of the Rules, any protective measures that have
been ordered in respect of a witness in the Milosevic
case continue to have effect in the case against
the Applicant and his co-accused, except as they
have been varied in accordance with this Order;

NOTING that the Motion states that it was
filed, at least in part, because of a “prosecutor’s
request that the defence obtain disclosure of relevant
materials in the Milosevic case through
a disclosure motion rather than solely through
disclosure directly from the Prosecutor under Rule 68”,
an approach which was “intended
to ensure that the chamber seized with the case
authorised disclosure pursuant to any and all protective
measures it wished to impose”;16

NOTING that the Rules specifically permit
the Prosecution to comply with its disclosure obligations
despite the existence of protective measures;17
and that if, in order to fulfil its disclosure
obligations, the Prosecution must provide materials
that would otherwise violate existing protective
measures, it may apply to the appropriate Chamber
for variation of those protective measures;18

CONSIDERING that this Order does not affect
the disclosure obligations of the Prosecution
under Rules 66 and 68, and that it is the responsibility
of the Prosecution to determine whether there
is additional material related to the
Milosevic proceedings that should be disclosed
to the Applicant, but that is not covered by the
terms of this Order;

PURSUANT TO Rules 54 and 75 of the Rules,

HEREBY GRANTS THE MOTION IN PART, and ORDERS
AS FOLLOWS:

(1) In consultation with the Prosecution and Assigned
Counsel, the Registry shall identify the following
categories of confidential material:

(a) All confidential supporting material that:

i. accompanied the Milosevic Bosnia
Indictment, and which pertains to the charges
related to Srebrenica and Sarajevo for Counts
1–7 and 16–18,
and

ii. accompanied the Milosevic Kosovo
Indictment, and which is relevant to the Applicant’s
resistance to the use of the VJ in Kosovo and
his subsequent termination as Chief of Staff
due to this resistance;

(b) All closed and private session transcripts
pertaining to:

i. the charges related to Srebrenica and Sarajevo
for Counts 1–7 and 16–18, and

ii. the Applicant’s resistance to the use of
the VJ in Kosovo and his subsequent termination
as Chief of Staff due to this resistance;

(c) All confidential and under seal trial exhibits
pertaining to:

i. the charges related to Srebrenica and Sarajevo
for Counts 1–7 and 16–18, and

ii. the Applicant’s resistance to the use of
the VJ in Kosovo and his subsequent termination
as Chief of Staff due to this resistance;

(d) All inter partes confidential filings
pertaining to:

i. the charges related to Srebrenica and Sarajevo
for Counts 1–7 and 16–18, and

ii. the Applicant’s resistance to the use of
the VJ in Kosovo and his subsequent termination
as Chief of Staff due to this resistance;

(2) The Prosecution shall determine as expeditiously
as possible whether any of this confidential
material falls under Rule 70, and shall contact
the providers of such material without delay
to seek their consent for disclosure of that
material.

(3) Subject to the consent of such Rule 70 providers
where applicable, the Applicant and his defence
counsel shall have access to these four categories
of inter
partes
confidential material.

(4) The Registry shall contact the Prosecution
to determine which confidential material in the
case, if any, is covered by Rule 70, and shall
withhold provision of such material until such
time as the Prosecution informs the Registry
that consent for disclosure has been obtained.

(5) The Applicant and his defence counsel shall
not disclose to the public any confidential or
non-public material disclosed to it from the Milosevic case
except to the limited extent that such disclosure
to members of the public is directly and specifically
necessary for the preparation and presentation
of the Applicant’s
case. If any confidential or non-public material
is disclosed to the public, any person to whom
disclosure is made shall be informed that he
is forbidden to copy, reproduce, or publicise
confidential or non-public information or to
disclose it to any person, and that he must
return the material to the Applicant or his counsel
as soon as it is no longer needed for the preparation
of the Applicant’s case.

(6) The Motion is otherwise denied.

For the purposes of this Order, “the public” means
and includes all persons, governments, organisations,
entities, clients, associations and groups, other
than the Judges of the International Tribunal, the
staff of the Registry, the Prosecutor and her representatives,
and the Applicant and his defence team. “The public” also
includes, without limitation, families, friends,
and associates of the Applicant; accused and defence
counsels in other cases or proceedings before the
International Tribunal ; the media; and journalists.

Done in English and French, the English text
being authoritative.

___________________________
Judge Robinson
Presiding

Dated this twenty-second day of February 2006
At The Hague
The Netherlands